Sidharath Vashisht @ Manu Sharma vs State on 3/9/2001
R.C. Chopra, J.
1. The petitioner, who is facing trail for offence under Sections 302/201/120-B of the Indian Penal Code (hereinafter referred to as “IPC”) and Section 27 of the Arms Act in the case, commonly known as “Jessica Lal Murder Case” prays for bail under Section 439 of the Code of Criminal Procedure (hereinafter referred to as the “Code” only).
2. The prosecution case, briefly stated, is that on the intervening night of 29th and 30th April, 1999, a party was going on at Tamrind Cafe, Qutub Colonade, Mehrauli, New Delhi, which was owned by one Mrs. Bina Ramani. The petitioner Amit Jhingan reached that Cafe at about 11.00p.m. Jessica Lal-deceased, a model, was working at the Cafe as a Bar maid. Towards the midnight when the party had almost come to an end, the petitioner started insisting for some more drinks. He first had a tiff with P.W. Malini Ramani, daughter of the owner of the Cafe, and thereafter asked Jessica Lal deceased to give him some more drinks. On her refusal, he allegedly took out a pistol and fired one shot towards the roof and the other towards her, which hit her death. The petitioner and his co-accused escaped from the Cafe but were later arrested. After investigation they were challaned and sent up trial.
3. I have heard Mr. R.S. Cheema, Senior Advocate appearing on behalf of the petitioner and Mr. S.K. Saxena, Special Public appearing for the State.
4. Learned Counsel for the petitioner has vehemently argued that all the three alleged eye-witness have been examined in the Trial Court as PWs 2, 3 and 4, but none has supported the prosecution case to say that the accused petitioner had fired at deceased Jessica Lal and committed her murder. According to him, mere presence of the petitioner at the spot is of no consequence as so many others were also present there and as such, there are no grounds on record to suggest even that the petitioner was concerned or connected with the murder of Jessical Lal. He submits that the police had falsely introduced the aforesaid three eye-witness in the case, which is full of holes from day one inasmuch as according to CFSL report on record, two cartridges recovered from the spot were fired from two different fire arms. According to him it shows that the assailant was not one but two. he also contends that statements of PWs Shiv Daas and Karan Rajput, under Section 161 of the Code, were recorded after about one month of the incident, which strengthens the stance of the hostile witness that they were not at all witnesses to the currency and had been falsely put up in support of the case of the prosecution. It is submitted that there is no other evidence with the prosecution to connect the petitioner with the crime and as such, he deserves to be enlarged on bail. It is prayed that the petitioner, who is a young man, having no antecedents of crime, may be enlarged on bail during pendency of trial on suitable terms and conditions. It is pointed out that he is already in custody for the last about two years and three months.
5. Learned Special Public Prosecutor for the State has opposed the prayer for bail, mainly on the ground that the prosecution witnesses have been won over by the accused and for that reason alone, it cannot be held that the prosecution case against the petitioner and his co-accused is false. He argues that there are numerous incriminating circumstances on record with, prima facie, connect the petitioner with the officence. It is submitted that had PWs 2, 3 and 4 been falsely introduced by the police, they ought to have protested long back against their names being dragged in this case, which was receiving wide publicity in the press as well as electronic media. Their failure to lodge any protest in this regard shows that they have ben lately won over by the accused and for that reason alone, they have gone back from their earlier statements and have refused to support the prosecution case. He also points out that evidence regarding presence of the petitioner at the spot, forcible removal of his vehicle from the spot, abandoning of the said vehicle at Noida, disappearance of his licensed pistol, role played by his uncle co-accused Shyam Sunder Sharma in ensuring disappearance of the licensed pistol of the petitioner and the telephonic conversation between P.W. A.K. Dutt and accused R.K. Sudan prima facie implicate the petitioner and connect him with the murder of deceased Jessica Lal. It is argued that persons may lie but circumstances do not. He contends that circumstantial evidence fully incriminates the petitioner and as such, it cannot be said that the prosecution has nothing on record to establish that the petitioner was involved (SIC.) concerned with the offence.
6. At first sight, the contention of learned Counsel for the petitioner that there remains nothing with the prosecution to connect the petitioner with the crime, in view of the statements of PWs 2,3 and 4, appeals but a close scrutiny of the material on record reveals that there are certain facts and circumstances which, at least prima facie, incriminate the petitioner and show that he is connected with the commission of the offence. The turn around of PWs 2, 3 and 4 and their refusal to support the prosecution case, in regard to firing by the petitioner causing death of the deceased Jessica Lal, certainly destabilizes the prosecution case but, at this stage, it cannot be said with certainty that they were falsely introduced witnesses. The reason is that had these witnesses been not eye-witnesses to the incident, they would not have kept silence for about two about two years when day in and day out the press and media was reporting that they were the three eye-witnesses to the shooting incident. Their belated denial of having witnessed the incident, therefore, suggests that they have been won over at the stag of trial only and as such have refused to support the case of the prosecution. Thus, at this stage, neither it can be said that they had seen the incident nor it can be said that they were not present at the spot and where falsely introduced by the police. This controversy remains to be cleared by the Trial Court. Their statements, therefore, have to be just ignored at this stage without drawing any adverse inference whatsoever against the prosecution or defense
7. The plea of learned Senior Counsel for the petitioner that CFSL report suggests that two fire arms were used and it demolished the entire prosecution case against petitioner cannot be sustained inasmuch as there is one more FSL report on record from Rajasthan which says that fro want of fire arm, no definite opinion could be given. This question needs in-depth consideration by the Trial court. The delay in the recording of statements of PWs is also yet to be explained by the Investigating Officer which he shall be obliged to do in the course of his statement during trial. This Court cannot give its findings on these points at this stage of the case itself.
8. If for one reason or the other ocular evidence is not available in regard to the commission of an offence, prosecution can certainly press into service circumstantial evidence available on record and pray fro considering the same. It is a time tested principle of jurisprudence that persons may lie but circumstances do not and as such, the Courts have been always depending heavily upon circumstantial evidence. In the present case the circumstances which, Prima facie incriminate and connect the petitioner with the alleged offence are his demand and insistence for more liquor and loss of temper on refusal, his hurried escape after the shooting incident along with his co-accused leaving behind his Tata Safari, removal of his Tata Safari in the wee hours by use of force, recovery of his vehicle at a lonely place in U.P. without there being any report of theft, change of its window pane and recovery of one live cartridge from the vehicle, disappearance of his licensed pistol, conduct of his co-accused/uncle Shyam Sunder Shrama in the matter of disappearance of licensed pistol of the accused petitioner and the taped telephonic talk between P.W. A.K. Dutt and proclaimed offender R.K. Sudan.
9. The presence of the accused petitioner Along with his friends at the Bar where the deceased Jessica Lal was murdered minutes before the incident and the heated exchange of words between him and P.W. Malini Ramani who has fully supported prosecution case is suggestive of the loss of tempers just before the firing incident. The immediate escape of the petitioner and his co-accused from the spot by way of pushing through the crowd as stated by Bina Ramani is quite unnatural. Leaving behind his black Tata Safari at the spot itself is inconsistent with his innocence and consistent with his guilt inasmuch as an innocent guest in a party would not leave his vehicle unattended. Subsequent removal of petitioner’s Black Tata Safari from the spot by his co-accused by sue of force against the guard on duty is wholly inconsistent with innocence and consistent with guilt inasmuch as had the petitioner and his co-accused been not concerned with the offence, firstly they would not have left their vehicle at the spot and secondly for taking back their vehicle they need not have used any force or tried to remove ti surreptitiously. Recovery of this Black Tata Safari from U.P. without there being any report of theft is also an incriminating factor which needs explanation. Change of its window pane which was broken at the time of its forcible removal was an attempt to destroy evidence so that the petitioner is not linked with the incident in question.
10. Non-recovery of the licensed pistol of the accused petitioner which, if recovered, might have conclusively connected him with the crime is a highly incriminating circumstance. The prosecution has collected enough material to show that soon after the incident every effort was being made to get rid of this pistol. Accused Shyam Sunder Sharma, who is the real uncle of the accused petitioner, played a pivotal rule in concealing it after getting ti through the proclaimed offender R.K. Sudan. The application dated 30.8.1999 moved on behalf of the accused petitioner that this licensed pistol had been taken away be the police from his (SIC)arhouse even before his arrest was a belated attempt to create some explanation or the disappearance of the weapon. If the police had removed this weapon from (SIC)he farmhouse of the petitioner, even prior to his arrest, this fact ought to have been brought to the notice of the Court prior to the arrest of the petitioner or at least immediately after his arrest when the police was praying for petitioner’s police remand for recovery of this pistol. It, therefore, appears that after disposing of or (SIC) this weapon and putting it beyond the reach of police efforts where made (SIC)shift the burden on the police for its non-availability. The telephonic conversation, between P.W. A.K. Dutt and the proclaimed offender R.K. Sudan, which was (SIC) by the police is int he nature of an extra-judicial confession. It indicates as (SIC) how the alleged weapon of the offence disappeared at the instance of uncle of the petitioner.
11. In the light of the aforesaid facts and circumstances available on record, it cannot be held that the prosecution has no evidence whatsoever against (SIC) petitioner and as such, he is entitled to be released on bail. At the stage of considering a bail application the Court is not at all required to find out as to whether an accused is guilty or not. It is enough if sufficient grounds are shown to connect him with the offence. The law is well-settled that bail is a rule and jail is an exception, but the accused involved in offenses which are grave, serious and heinous fall within the exception and not the rule. Considering the serious nature of the offence and gravit(SIC) of the allegations this Court, therefore, is of the considered view that there are (SIC) good and sufficient grounds for enlargement of the petitioner on bail during trial. There is a possibility that in case he is enlarged on bail, he may tamper with the evidence and influence the witnesses who are yet to be examined by the prosecution. The offence is punishable with death and as such, there is also a chance that he (SIC) jump bail and become unavailable for trial.
12. Under the circumstances, this Court is of the considered view that plea(SIC) the petitioner for his enlargement on bail during trail cannot be allowed. However the Trial Court is directed to make every endeavor to complete the trial within period of four months from today.
13. The application for bail stands rejected.
14. Nothing stated herein shall be taken as an expression of opinion on the merits of the case pending before the Trial Court.
Trial Court file be sent back immediately.